Constructive possession in Ca

[ap3572001]

Nope, you still got it wrong.

Having the ability to change the configuration of the weapon ("YOU CAN") is very different from having the intent to change the configuration of the weapon.

Ok. Someone has a std complete lower ( non ca) and complete upper. And a bunch of other guns . Do they have an intent to assemble that upper and lower any time soon? I got what You are saying but the intent thing can create a mess.

[RickD427]

Ok. Someone has a std complete lower ( non ca) and complete upper. And a bunch of other guns . Do they have an intent to assemble that upper and lower any time soon? I got what You are saying but the intent thing can create a mess.

Intent is often a difficult element to prove. If you have an upper and a lower that would produce an illegal weapon when assembled, and there is no other lawful weapon configuration for them to be built into, then there is certainly an inference that the purpose of having them is to create an illegal weapon. But inferences alone do not meet the "Beyond a Reasonable Doubt" standard required for a conviction.

But also remember that lower standards are required for an arrest ("Probable Cause") and for the filing of criminal charges ("Good Faith Belief That a Conviction Could Be Obtained").

The best practical advice is just don't mess with the grey area stuff.

[ke6guj]

per the withdrawn regs, CADOJ stated that the firearm needed to actually be in an AW-config to be an AW. that if it was disassembled, that it was not an AW.

but since those regs were withdrawn, we don't know where they stand on that opinion.

[ap3572001]

per the withdrawn regs, CADOJ stated that the firearm needed to actually be in an AW-config to be an AW. that if it was disassembled, that it was not an AW.

but since those regs were withdrawn, we don't know where they stand on that opinion.

What withdrawn recs are You referring to? Sorry , I am just not 100% up to date on this stuff.

[ke6guj]

What withdrawn recs are You referring to? Sorry , I am just not 100% up to date on this stuff.

http://213ajq29v6vk19b76q3534cx.wpengine.netdna-cdn.com/wp-content/uploads/2016/06/doj.pdf

5471(hh)(3) is the section you are looking for.

[ifilef]

per the withdrawn regs, CADOJ stated that the firearm needed to actually be in an AW-config to be an AW. that if it was disassembled, that it was not an AW.

but since those regs were withdrawn, we don't know where they stand on that opinion.

I think PC 664 and case law would be controlling at this time. So much for the complainers out there who had nothing at all good to say about the withdrawn regs.

"664.
Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows:
(a) If the crime attempted is punishable by imprisonment in the state prison, or by imprisonment pursuant to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.

(b) If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted.

(c) If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted.

(d) If a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees, and the punishment for the attempt shall be determined as provided by this section.

(e) Notwithstanding subdivision (a), if attempted murder is committed upon a peace officer or firefighter, as those terms are defined in paragraphs (7) and (9) of subdivision (a) of Section 190.2, a custodial officer, as that term is defined in subdivision (a) of Section 831 or subdivision (a) of Section 831.5, a custody assistant, as that term is defined in subdivision (a) of Section 831.7, or a nonsworn uniformed employee of a sheriff’s department whose job entails the care or control of inmates in a detention facility, as defined in subdivision (c) of Section 289.6, and the person who commits the offense knows or reasonably should know that the victim is a peace officer, firefighter, custodial officer, custody assistant, or nonsworn uniformed employee of a sheriff’s department engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.
This subdivision shall apply if it is proven that a direct but ineffectual act was committed by one person toward killing another human being and the person committing the act harbored express malice aforethought, namely, a specific intent to unlawfully kill another human being. The Legislature finds and declares that this paragraph is declaratory of existing law.

f) Notwithstanding subdivision (a), if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state prison, and the person shall not be released prior to serving 15 years’ confinement."

[ap3572001]

http://213ajq29v6vk19b76q3534cx.wpen...016/06/doj.pdf

5471(hh)(3) is the section you are looking for.

Thank You. Intersting how they said :" in the case of an AR-15 rifle....... " . Does that mean that only AR 15 style rifle is NOT a semiautomatic rifle when taken apart ?

[Jimi Jah]

Ok. So basically , they can do whatever they want .

Unless you can match them with a world class attorney and the funds to pay them, then yes they can.

[AKSOG]

Nope, you still got it wrong.

Having the ability to change the configuration of the weapon ("YOU CAN") is very different from having the intent to change the configuration of the weapon.

Nguyen shot himself in the foot

1. Felon in possession of a completed rifle that he manufactured
2. Felon in posession of the dreaded .50 cal (even though it wasn't BMG)
2. Admitting he was in the process of completing another rifle (AK47)
3. Manufactured a firearm for an AK47 and had a box of parts that could only result in an AW configuration since he had no compliance parts.

It seems to me that these are the types of extenuating circumstances required to get ones self slapped with an attempted possession of an AW. Not something the average person with a half a brain should worry about on a daily basis IMO.

But if people are really that worried then I would suggest they keep compliance parts on hand or purchase them before they get their rifle parts and keep their mouth shut if questioned. Intent is hard to prove if you have rifles already in compliance, the compliance parts to add to any of your builds, and don't admit you are building something that could only be in an illegal configuration.

[IVC]

If you have an upper and a lower that would produce an illegal weapon when assembled, and there is no other lawful weapon configuration for them to be built into, then there is certainly an inference that the purpose of having them is to create an illegal weapon.

Or, there is an intent to comply with an unreasonable "cosmetic" law by separating the firearm into individual components.

The problem is that it's open to interpretation and just the threat of litigation is sufficient to have casual gun owners think twice about owning EBRs.

[IVC]

It seems to me that these are the types of extenuating circumstances required to get ones self slapped with an attempted possession of an AW. Not something the average person with a half a brain should worry about on a daily basis IMO.

Sure Nguyen had all sorts of issues, but once the precedent is set it applies to everyone. The "constructive possession" as a legal concept is now officially in play in CA and can be used against us without the context in which it was used against Nguyen.

This type of "well-intended-judicial-overreach-because-they-are-criminals" gave us, among others, the precedent of Terry stop which has been used and abused.

[Cokebottle]

So how is "attempted possession of assault weapon" defined? This sounds very overreaching. It's like saying that a person with a BB equipped AR and 30rd magazine in the same bag ( or a standard magazine release button and needed tools to make a change. ) is attempting a possession of an Assault Weapon.

He was a prohibited person AND admitted to intending to manufacture assault weapons.
His intent was clearly articulated.
Sadly, it created some bad case law.

BUT....

The DOJ AW regulations that were posted and withdrawn DID clearly state that a lower and upper, separated, even if possessed together, does NOT constitute a semiautomatic weapon.

But intent is still a potential issue.
Worst case, the above reading would cover you if you had a non-RAW non-maglocked lower and rimfire upper, separated, transported with a RAW with a centerfire upper, also separated.
Theoretically, the centerfire upper COULD be assembled to the featured non-RAW lower, but the above combination of parts provides a legal assembly path, making it difficult to prove intent.

But three centerfire uppers and three non-RAW, non-maglocked featured lowers transported together.... it's pretty hard to deny intent unless you are on your way out of the state.